"Achieving justice" - address to the Northern Territory Law Society

Darwin, Thursday 18 May 2017













Let me begin by acknowledging my hosts here today, the NT Law Society, who have done a great job in organising NT Law Week and this lunch. And of course my eminent fellow speaker, former Chief Justice of the High Court Robert French. I think we will all agree that former Justice French has been ably replaced by the Honourable Susan Kiefel, but he will be sorely missed by the court. I am so glad he is continuing to contribute to public life through his work with the Law Council and its Justice Project, and I very much look forward to hearing his keynote speech today.

I acknowledge also my colleague in federal politics, Luke Gosling, the member for Solomon. Luke may not have been in Parliament very long but he is already making an impact on behalf of Darwin and its surrounding communities.

My main reason for visiting Darwin this week was to meet the new Northern Territory Labor government and the new Attorney-General, Natasha Fyles, which I did yesterday. May I briefly say how heartening it is to see the changes that are already happening in the Territory thanks to a Labor government being in charge. We all know that some of the outcomes of the former CLP government in the Territory, particularly when it came to law and justice, were woeful. That became impossible to ignore at the end of their term thanks to the Don Dale Four Corners exposé.

It’s so refreshing to see new approaches to the parole system, to justice reinvestment and diversionary programs, and to hear a change from the “lock them up” mentality the Territory has become used to. I have every confidence Natasha Fyles and the government as a whole will do great things.

‘Achieving Justice’

The topic of this week’s Law Week is ‘achieving justice’. It is a broad topic but one that is eminently worthy of our attention here today. As a lawmaker, it’s at the front of my mind when I consider any legislative proposals, of which there are many.

But achieving justice extends beyond just making laws. It’s also about access to justice – whether everyday Australians feel that the courts and justice system are operating in their favour, or at least fairly. Whether they understand how everything works, whether they feel they know who to go to in order to represent their best interests, and whether they can access legal representation at all.

I’ve spent the last year or so in intensive campaigning, arguing against the $33 million funding cuts which were planned for Community Legal Centres and Aboriginal and Torres Strait Islander Legal Services on 1 July this year. Those cuts have of course now been reversed in last week’s Budget.

To me, free legal services for those who cannot afford legal representation are exactly what we should be talking about when we consider what ‘justice’ means for ordinary people.

If someone finds themselves with a legal issue through no fault of their own – for instance in a  domestic violence issue – they have to feel that the justice system is available for them. They have to see a way in; a pathway to accessing the help they need. If they cannot, then we are failing our first duty as lawmakers, as lawyers, and as jurists.

That was why I was so concerned about the 30 per cent cuts that were due to fall on legal assistance services. Some of you here will be employees of a CLC or an ALS, or volunteers, and most of you will have come into contact with these centres in your work. So I don’t need to tell you how hard the people in these centres work, or how important the work is that they do.

Even with their current funding levels, Community Legal Centres nationally were turning away an average of over 100,000 people a year from their offices due to overcapacity issues. Only the most desperate cases are able to be attended to.

It’s a similar story with Aboriginal and Torres Strait Islander Legal Services around Australia. According to the National Association’s 2017 budget submission, even before the planned cuts, centres were having to reduce frontline services in urban, regional and remote areas, make staff redundant, and place freezes on giving advice to new clients. It’s not right.

Through tireless campaigning for the national bodies for CLCs and ATSILs, and thanks to the raised voices of prominent Australians like Rosie Batty, the government was forced to back down on these cuts shortly before the budget. It was a last-minute reprieve, and a lot of damage has already been done. But nevertheless, it means lawyers can keep their jobs and people in need can keep being helped, and that is the important thing.

In the longer term, I would like to see a far greater degree of funding certainty for CLCs, ATSILSs, and indeed for Family Violence Prevention Legal Services who have been shunted off to the Prime Minister’s Department and given funding contracts sometimes for as little as a year.

It’s not good enough.

Nevertheless, the fact that this reversal was secured should be heartening to everyone here today. In fact it is the second such funding reversal under the Abbott-Turnbull government, which has been dragged each time to a position where it is forced to recognise the worth of free legal assistance services by campaigners from the sector. You think they would have learned the first time, but I have the feeling this particular fight will never be over.

We’ll keep having to convince the present Coalition government of the worth of legal assistance services, but I have a feeling we will also keep winning the argument, no matter how long it takes.

Indigenous justice

Achieving justice for our Indigenous population is a topic I also feel I need to address. That is particularly because of the warning signs we have had recently that indicate just how far away we are from that aim.

I probably don’t need to tell you the statistics that demonstrate just how bad the situation is when it comes to the overrepresentation of Indigenous Australians in our justice system and in our jails. Just this week a new report was released by the Human Rights Law Centre which focused on Indigenous women in the jail system. It found that today, Indigenous women make up 34 per cent of women in Australian prisons but only 2 per cent of the entire Australian female adult population.

In the 25 years since the Royal Commission into Indigenous Deaths in Custody, the incarceration rate among Indigenous Australian women has risen by nearly 250 per cent. 80 per cent of the Indigenous women in our prisons are mothers.

It’s not right, and it must change.

Some of the crimes these women are incarcerated for are minor. We need no more painful reminder than Ms Dhu, a Yamaji woman who died in a Port Hedland jail in 2014 of sepsis in front of prison guards, who failed to recognise the seriousness of her situation despite three trips to hospital. She was in jail because of $3,622 in unpaid fines.

Of course, unfortunately, the problem spreads wider than just Indigenous women and also sweeps up Indigenous men and children. Overall, Indigenous Australians are 13 times more likely than non-Indigenous Australians to be put in jail.

The knock-on effects in terms of joblessness, ill-health and family trauma that come from that overrepresentation in the justice system are huge and overwhelming.

So what can we do?

There is something pretty basic we can start off with – and that is at least to have an official aim to reduce the rates of Indigenous incarceration. We must include Indigenous justice targets in the federal government’s yearly Closing the Gap reports. It’s a stunning oversight that they are not included. I think it speaks volumes about the ineffective Indigenous Affairs Minister we currently have, that this has not yet been done.

It’s longstanding Labor policy and we would implement it in government. To measure the scale of the problem would cost next to nothing – and yet how can we start to address Indigenous incarceration rates properly, and aim to reduce them, without even having a starting point?

Reducing Indigenous incarceration rates would have an overwhelming positive impact on so many aspects of Indigenous wellbeing. Keep people out of jail, and you will find them instead in jobs, or in school or training, making something of their lives. Putting people in jail should never be the first option taken by enforcement agencies or our courts, particularly for minor offences.

Since he came to the Senate mid-last year, it has been my absolute privilege to work closely with Senator Patrick Dodson, one of the original commissioners on the Royal Commission into Indigenous Deaths in Custody 25 years ago. That the situation has not improved – that it has, in fact worsened – is a great source of sorrow to him, and indeed to me.

There is some hope – during my visit in Darwin I have had the opportunity to talk with an organisation named Jesuit Social Services, which has just been given funding by the Northern Territory Government to pilot a Youth Justice Group Conferencing pilot program in Palmerston. An alternative to youth detention, this program puts young offenders face to face with their victims, allowing the victims to seek a form of redress and apology and the offenders to see first-hand the impact of their crimes. An evaluation of the same program in Victoria found 80 per cent of participants in these programs had not re-offended two years later. That’s an astounding result.

Programs like these are exactly the kind of creative solutions we need to address the problem of Indigenous incarceration, particularly among youth. I’m so glad the NT Labor government is supporting it.

Another issue I consider urgent is the nationwide implementation of mandatory Custody Notification Services (CNS). This was a recommendation of the Indigenous Deaths in Custody Royal Commission 25 years ago and yet it has still to be implemented.

We saw the impacts of this failure in the case of Ms Dhu, whose family was not made aware she was in custody. Her death may have been prevented, had her family been made aware she was in jail.

The Indigenous Affairs Minister Nigel Scullion made an “offer” of funding to states and territories at the end of last year to implement CNS nationwide, with no quantum of funding attached and nothing in the most recent federal budget. Nevertheless we’re hopeful of some progress being made, particularly in areas like the Territory where this service is clearly needed.


Achieving justice, particularly for our indigenous Australians, can seem at times an arduous if not impossible task. It is not, and we mustn’t allow ourselves to give in to that way of thinking.

My recent experience of the reversal of devastating cuts to Community Legal Centres and Aboriginal and Torres Strait Islander Legal Services, for instance, gives me great hope. To be honest, I never believed that the Coalition government could be brought round to an appreciation of the role and importance of legal assistance services. But dedicated campaigning combined with a targeted approach actually worked, and the funding reversal has pulled many centres back from the brink.

There are few easy wins when it comes to the question of justice. Indeed the victories are often small and hard-won. But it is the most worthy fight and I urge you all to continue it, no matter your area of practice.

Thank you